Putra v Minister for Immigration

FEDERAL MAGISTRATES COURT OF AUSTRALIA

PUTRA v MINISTER FOR IMMIGRATION & ANOR [2011] FMCA 498

MIGRATION – Migration Review Tribunal – application for judicial review – non-payment of prescribed fee at time of filing application with Tribunal for review of delegate’s decision – expiry of time limit to make payment of prescribed fee or apply for fee waiver – reliance on information from Tribunal that time limit not yet expired – statutory requirements – whether jurisdictional error.

Migration Act 1958 (Cth), ss.338(2), 347(1), 486A, 494C(4)(a)
Migration Regulations 1994 (Cth), reg.4.10(1)(a)

Applicant S298/2003 v Minister for Immigration & Citizenship (2007) 99 ALD 25; [2007] FCA 1793
Braganza v Minister for Immigration and Multicultural Affairs (2001) 109 FCR 364; [2001] FCA 318
Khan v Minister for Immigration and Citizenship [2009] FCA 443
Kirk v Minister for Immigration and Multicultural Affairs (1998) 87 FCR 99
Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; [2001] HCA 30
Plaintiff M13-2011 v Minister for Immigration and Citizenship [2011] HCA 23
Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476; [2003] HCA 2
Singh v Minister for Immigration and Citizenship (2001) 190 FCR 552; [2001] FCAFC 27
SZAPT v Minister for Immigration and Citizenship [2010] FCA 75

Applicant: I GUSTI NGURAH AGUS ARISTA PUTRA

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: PEG 60 of 2011

Judgment of: Lucev FM

Hearing date: 30 June 2011

Date of Last Submission: 30 June 2011

Delivered at: Perth

Delivered on: 13 July 2011

REPRESENTATION

For the Applicant: In person

Counsel for the First Respondent: Mr A Gerrard

Solicitors for the First Respondent:	Australian Government Solicitor
For the Second Respondent:	Submitting appearance, save as to costs.

ORDERS

1. The application be dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT PERTH

PEG 60 of 2011

I GUSTI NGURAH AGUS ARISTA PUTRA

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. This case involves:

   a)an application to review the refusal to grant a Child (Residence) (Class BT) visa to a young Indonesian student;

   b)the provision of erroneous advice by a Tribunal officer as to the last date for payment of the prescribed fee that must accompany a review application; and

   c)the jurisdiction of the Tribunal to review the application in circumstances where the applicant has relied on the misinformation concerning fee payment to his detriment.

Factual background

1. On 17 March 2010 the applicant, Mr Putra, applied for a Child (Residence) (Class BT) visa.[1]  The application was prepared with the assistance of Matthew Rumley, a migration agent with Migration and Education Consultants Australia.[2]

   [1] Court Book (“CB”) 1-16.

   [2] CB 14.

2. On 28 October 2010 the application was refused by a delegate of the first respondent.[3]

   [3] CB 98-113 (“Delegate’s Decision”).

3. On Friday 26 November 2010, Mr Putra’s application for review of the Delegate’s Decision was faxed to the Migration Review Tribunal.[4]  However, no application fee was paid, nor was an application…